1.Special Education Finances: State Subsidy and Direct PaymentsA.General Principles; Intermediate Educational Unit and School Administrative Unit ResponsibilityCDS:
For the CDS regional sites the CDS State IEU Allocation Methodology governs the distribution of annual grant awards from available funds to regional intermediate educational units in accordance with an allocation methodology to ensure the provision of child find, early intervention services for eligible children birth to under age 3, and special education and related services for eligible children three to under age 6 with disabilities and their families.
The purpose of the allocation methodology is to distribute available funds based on objective statistical methods of allocation that reflect site needs related to personnel and to children to be served. The allocation methodology distributes available funds from federal Part B, § 619, federal Part C and State General Fund, including Medicaid Targeted Case Management (TCM) cost reimbursement to the regional sites, or to local educational agencies functioning as pilot sites. Medicaid cost reimbursement for direct services is also accounted for.
The allocation methodology includes consideration of the costs associated with the following functions: administration; child find; case management; and provision of mandated services to eligible children. The allocation methodology takes into consideration other factors, which include the statewide population of children from birth under age 6; Child Count; the Medicaid eligibility rate; and cost containment measures. The total allocations made under the allocation methodology may not exceed funds allocated or appropriated to the program.
SAUs for Children 5-20:
School administrative units are generally responsible for financing the special education services to children with disabilities age five to twenty in the first instance, with subsidy payments from the State made pursuant to 20-A MRSA §15681-A and with local property taxes.
Beginning in fiscal year 2005-06, a SAU receives an additional weight of at least 1.20 but not greater than 1.40 for each special education child identified on the annual December 1st Child Count as required by the federal Individuals with Disabilities Education Act for the most recent year, up to a maximum of 15% of the SAU's resident pupils as determined under 20-A MRSA §15674, subsection 1, paragraph C, subparagraph (1). For those school administrative units in which the annual December 1st Child Count for the most recent year is less than 15% of the school administrative unit's resident pupils as determined under 20-A MRSA §15674, subsection 1, paragraph C, subparagraph (1), the special education Child Count percentage may not increase more than 0.5% in any given year, up to a maximum of 1.0% in any given 3-year period. For each special education child above the 15% maximum, the unit receives an additional weight of .38. In addition, each school administrative unit must receive additional funds:
(1)For lower staff-student ratios and expenditures for related services for SAUs with fewer than 20 special education children identified on the annual December 1stt Child Count as required by the federal Individuals with Disabilities Education Act for the most recent year;(2)For high-cost in-district special education placements. Additional funds must be allocated for each child estimated to cost 3 times the statewide special education EPS per-pupil rate. The additional funds for each child must equal the amount by which that student's estimated costs exceed 3 times the statewide special education EPS per-pupil rate;(3)For high-cost out-of-district special education placements. Additional funds must be allocated for each child estimated to cost 4 times the statewide special EPS per-pupil rate. The additional funds for each child must equal the amount by which that student's estimated costs exceed 4 times the statewide special education EPS per-pupil rate; and(4)To ensure the SAU meets the federal maintenance of effort requirement for receiving federal Individuals with Disabilities Education Act funds.B.Essential Program and Services Funding Act: Allowable Special Education Costs(1)The salary and benefit costs of qualified professional personnel, Educational Technicians, clerical staff or qualified independent contractors providing special education services or related services.(2)The costs of tuition, board, and special education services paid to other SAUs or private schools which have been approved by the Commissioner for the provision of special education and related services as reported on the EF-S-07 Report.C.Costs of Qualified PersonnelThe salary and benefit costs for qualified educational personnel shall be funded in part by the Department to the extent that these personnel are assigned to special education functions.The personnel providing early intervention services must meet qualifications that are consistent with any state-approved or recognized certification, licensing, registration, or other comparable requirements that apply to the area in which such personnel are providing early intervention services.
(1)Certified Educational PersonnelFor B-5 special education teachers shall have a #282 certificate.
For 5-20:
These shall include administrators, teachers and educational specialists assigned to provide or administer special education services:
Department of Education Certificate Title |
Administrator of Special Education | #030 |
Assistant Administrator of Special Education | #035 |
Special Education Consultant | #079 |
School Psychologist | #093 |
Vocational Education Evaluator | #094 |
Speech & Hearing Clinician | #293 |
School Nurse ** | #524 |
Teacher of Students w/ Disabilities | #282 |
Teacher - Severe Impairments | #286 |
Teacher - Hearing Impairments | #292 |
Teacher - Visual Impairments | #291 |
Adapted Physical Education | #515 |
**Only as is necessary as identified on the child's Individualized Education Program (IEP).
School units may not report as program costs the salaries or benefits (full or prorated) of regular classroom teachers, administrators or educational specialists (such as guidance counselors) that provide instruction and services to children with disabilities in the same manner as to all other children.
(2)Auxiliary StaffThese shall include those Educational Technicians I, II, and III approved by the Department's Office of Certification and assigned full-time or part-time to provide special education services. The salaries or benefits (full or partial) of persons who are assigned as Educational Technicians in regular classrooms and are not providing direct services to children with disabilities within those classrooms, are not allowable special education costs.
(3)Licensed or Credentialed ProvidersThese shall include those persons licensed or credentialed by appropriate state or national agencies to provide related services to children with disabilities.
(a)Qualified Licensed or Credentialed ProvidersJob Title | Licensing Authority |
Audiologists | Maine Board of Speech, Audiology and Hearing |
Interpreter / Transliterator | Office of Licensing and Registration, Department of Professional and Financial Regulation |
Licensed Clinical Professional Counselors Licensed Marriage and Family Therapists | Maine Board of Counseling Professionals Licensure |
Occupational Therapists and Occupational Therapy Aides | Maine Board of Examiners of Occupational Therapy Practice |
Physical Therapists and Physical Therapist Assistants | Maine Board of Examiners of Physical Therapy |
Psychologists | Maine Board of Examiners of Psychologists |
Social Workers | Maine Board of Social Workers Licensure |
Speech-Language Pathologists, Speech-Language Pathology Aides and Assistants | Maine Board of Speech, Audiology and Hearing |
Certified Employment Specialist | Association of Community Rehabilitation Educators (ACRE) Note: Must also hold Educational Technician III authorization through the Maine Department of Education |
Board Certified Behavior Analyst | Behavior Analyst Certification Board |
Certified Assistive Technology Professional | Rehabilitation Engineering and Assistive Technology Society of North America |
Orientation and Mobility Specialist | Academy for Certification of Vision Rehabilitation and Education Professionals |
Recreation Therapist | National Council for Therapeutic Recreation Certification |
(b)Required Procedures for Contracted Special Education Services.(i)Use of independent contractors - If the IEP Team determines that the provision of special education or related services is necessary to identify or provide for a child's special education needs and if the provider of such special education or related services is not an employee of the SAU, such services shall be provided in accordance with the terms of a written contract approved by the superintendent or the State IEU.(ii)Contracts - SAUs shall negotiate a written contract with any individual or agency from which they wish to obtain special education or related services.The following information shall be included in each contract:
(I)Total costs for services, listed in detail;(II)Nature and extent of consultation and/or evaluation services to be provided;(III)The name, social security number, and certification/licensure of the provider;(IV)Provision for the proration of charges and payments; and(V)Provision for the timely exchange of essential information and individual student reports between the provider and the sending unit.(iii)Credentials of independent contractors - When contracted special education or related services are provided to children, the provider shall be certified by the Department of Education or hold a valid Maine license or other appropriate credential as identified in Section XV III.1.C(3)(a) above to practice in any of the areas identified in that section.Contracted consultants who do not possess either certification or licensure, as described in paragraph (b)(iii) above, shall not provide special education and relatedservices without prior written approval from the Department of Education.
Fingerprinting is required for all contracted providers.
(c)Annual Report of Contracted ServicesSchool units shall annually report all contracted special education service providers on the "Contracted Services Report" (EF-S-03 form) in the manner required by the Commissioner.
(d)Payment for Contracted ServicesPayment for services by school administrative units to qualified licensed contractors may be the Medicaid rate paid for comparable services and must be considered payment in full. The payment for psychological service providers may be the Medicaid rate that is provided for psychologists.
(e)If a school administrative unit is unable to find a qualified licensed contractor at the Medicaid rate for comparable services, the first priority of the school administrative unit must be to ensure the provision of free, appropriate public education for eligible children, and the second priority of the school administrative unit must be to enter into a short-term contract with a qualified licensed contractor. The Department of Education shall provide guidance to school administrative units on the procedures that must be followed when a qualified licensed contractor is not available at or below the Medicaid rate ceiling for comparable services.D.State Payment for State Agency ClientsSpecial education costs for state agency clients shall be paid by the Department in the year of allocation at 100 percent of actual costs in accordance with 20-A MRSA §15689-A. Administrative units seeking state payment for state agency clients shall submit Forms EF-S- 01, EF-S-04A and EF-S-04B in the manner required by the Commissioner.
E.Special Education Services ReportingAnnual report of allowable special education expenses shall be made following the close of each fiscal year using the MEDMS Financial Systemin accordance with the accompanying instructions and with provisions of the Essential Program and Services Funding Act.
F.Reconciliation of Audit FindingsThe annual audit of SAUs shall determine whether a SAU which receives tuitioned children with disabilities has generated a surplus of income over allowable costs or incurred a deficit. The Commissioner may require a rebate to sending units or additional tuition payments from sending units in such cases or require such other arrangements as are deemed equitable where the audit reveals that reports were made in error.
G.Use of Third-Party Funding(1)Nothing in these regulations or the regulations implementing the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) is intended to relieve an insurer, Maine Care or other third party, from an otherwise valid obligation to provide or pay for services to a child with a disability.(2) Children with disabilities ages 3-20 who are covered by public insurance.(a) A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this rule, as permitted under the public insurance program, except as provided in paragraph(2)(b) of this section.(b) With regard to services required to provide free appropriate public education to an eligible childunder this rule, the SAU.may not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of IDEA and may not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services, but may pay the cost the parents otherwise would be required to pay. The SAU may not use a child's benefits under a public benefits or insurance program if that use would decrease available lifetime coverage or any other insured benefit; would result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school; would increase premiums or lead to the discontinuation of benefits or insurance; or would risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; Prior to accessing a child's or parent's public benefits or insurance for the first time, and after providing notification to the child's parents consistent with § 300.154(d)(2)(v), must obtain written, parental consent that-- (A) Meets the requirements of § 99.30 of this title and § 300.622, which consent must specify the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child), the purpose of the disclosure (e.g., billing for services under part 300), and the agency to which the disclosure may be made (e.g., the State's public benefits or insurance program (e.g., Medicaid)); and(B) Specifies that the parent understands and agrees that the public agency may access the parent's or child's public benefits or insurance to pay for services under part 300. Prior to accessing a child's or parent's public benefits or insurance for the first time, and annually thereafter, must provide written notification, consistent with § 300.503(c), to the child's parents, that includes-- (A) A statement of the parental consent provisions in § 300.154(d)(2) (iv)(A)-(B);(B) A statement of the "no cost" provisions in § 300.154(d)(2)(i) -(iii);(C) A statement that the parents have the right under 34 CFR part 99 and part 300 to withdraw their consent to disclosure of their child's personally identifiable information to the agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) at any time; and(D) A statement that the withdrawal of consent or refusal to provide consent under 34 CFR part 99 and part 300 to disclose personally identifiable information to the agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.(3) Children with disabilities ages 3-20 who are covered by private insurance (a) With regard to services required to provide APE to an eligible child under these rules, the SAU may access a parent's private insurance proceeds only if the parent provides informed consent consistent with Section XV of this rule.(b) Each time the SAU proposes to access the parent's private insurance proceeds, it must obtain parental consent in accordance with these rules; and inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the SAU of its responsibility to ensure that all required services are provided at no cost to the parents.(4) Policies related to use of public benefits or insurance or private insurance to pay for Part C (B-2) services (a)Use of public benefits or public insurance to pay for Part C services.(1) A State may not use the public benefits or insurance of a child or parent to pay for part C services unless the State provides written notification, consistent with § 303.520(a)(3), to the child's parents, and the State meets the no-cost protections identified in paragraph (a)(2) of this section.(2) With regard to using the public benefits or insurance of a child or parent to pay for part C services, the State- (i) May not require a parent to sign up for or enroll in public benefits or insurance programs as a condition of receiving part C services and must obtain consent prior to using the public benefits or insurance of a child or parent if that child or parent is not already enrolled in such a program;(ii) Must obtain consent, consistent with §§ 303.7 and 303.420(a)(4), to use a child's or parent's public benefits or insurance to pay for part C services if that use would-(A) Decrease available lifetime coverage or any other insured benefit for that child or parent under that program;(B) Result in the child's parents paying for services that would otherwise be covered by the public benefits or insurance program;(C) Result in any increase in premiums or discontinuation of public benefits or insurance for that child or that child's parents; or(D) Risk loss of eligibility for the child or that child's parents for home and community-based waivers based on aggregate health-related expenditures.(iii) If the parent does not provide consent under paragraphs (a)(2)(i) or (a)(2)(ii) of this section, the State must still make available those part C services on the IFSP to which the parent has provided consent.(3) Prior to using a child's or parent's public benefits or insurance to pay for part C services, the State must provide written notification to the child's parents. The notification must include-(i) A statement that parental consent must be obtained under § 303.414, if that provision applies, before the State lead agency or EIS provider discloses, for billing purposes, a child's personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid);(ii) A statement of the no-cost protection provisions in § 303.520(a)(2) and that if the parent does not provide the consent under § 303.520(a)(2), the State lead agency must still make available those part C services on the IFSP for which the parent has provided consent;(iii) A statement that the parents have the right under § 303.414, if that provision applies, to withdraw their consent to disclosure of personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) at any time; and(iv) A statement of the general categories of costs that the parent would incur as a result of participating in a public benefits or insurance program (such as co-payments or deductibles, or the required use of private insurance as the primary insurance).(4) If a State requires a parent to pay any costs that the parent would incur as a result of the State's using a child's or parent's public benefits or insurance to pay for part C services (such as copayments or deductibles, or the required use of private insurance as the primary insurance), those costs must be identified in the State's system of payments policies under § 303.521 and included in the notification provided to the parent under paragraph (a)(3) of this section; otherwise, the State cannot charge those costs to the parent.(b)Use of private insurance to pay for Part C services.(1)(i) The State may not use the private insurance of a parent of an infant or toddler with a disability to pay for part C services unless the parent provides parental consent, consistent with §§ 303.7 and 303.420(a)(4), to use private insurance to pay for part C services for his or her child or the State meets one of the exceptions in paragraph (b)(2) of § 303.520. This includes the use of private insurance when such use is a prerequisite for the use of public benefits or insurance. Parental consent must be obtained- (A) When the lead agency or EIS provider seeks to use the parent's private insurance or benefits to pay for the initial provision of an early intervention service in the IFSP; and(B) Each time consent for services is required under § 303.420(a)(3) due to an increase (in frequency, length, duration, or intensity) in the provision of services in the child's IFSP.(ii) If a State requires a parent to pay any costs that the parent would incur as a result of the State's use of private insurance to pay for early intervention services (such as co-payments, premiums, or deductibles), those costs must be identified in the State's system of payments policies under § 303.521; otherwise, the State may not charge those costs to the parent.(iii) When obtaining parental consent required under paragraph (b)(1)(i) of this section or initially using benefits under a child or parent's private insurance policy to pay for an early intervention service under paragraph (b)(2) of § 303.520, the State must provide to the parent a copy of the State's system of payments policies that identifies the potential costs that the parent may incur when their private insurance is used to pay for early intervention services under this part (such as co-payments, premiums, or deductibles or other long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps under the insurance policy).(c)Inability to pay. If a parent or family of an infant or toddler with a disability is determined unable to pay under the State's definition of inability to pay under § 303.521(a)(3) [system of payments and fees] and does not provide consent under paragraph (b)(1), the lack of consent may not be used to delay or deny any services under this part to that child or family. 34 CFR 303.520H.Local Entitlement FundsEach SAU providing special education services to children with disabilities is eligible to receive federal "local entitlement" funds upon the Department's approval of the SAU's application (Form EF-S-08) for such funding. Applications shall be submitted in the manner required by the Commissioner. The Department shall respond within a reasonable period of the receipt of each such application.
I.Other Agency ResponsibilityThe Department is responsible for ensuring that children with disabilities who are eligible for special education services are provided a free appropriate public education and that all educational programs for children with disabilities in the State, including any such programs administered by any other state or local agency, are under the general supervision of the Department and meet the standards contained in these regulations.
Nothing in these rules relieves any other public agency, including the Maine Department of Health and Human Services, the Department of Labor, and Bureau of Vocational Rehabilitation or the Department of Corrections, of the responsibility to provide or pay for any early intervention, special education or related service that the agency would otherwise provide to children with disabilities who meet the eligibility criteria of that agency.
Responsibility for services, dispute resolution, and any reimbursement of cost to the Department or local agency shall be governed by Interagency Agreements and the Interagency Dispute Resolution Process,
If a public agency other than an educational agency fails to provide or pay for the special education and related services, the SAU shall provide or pay for these services to the student in a timely manner. The SAU may then claim reimbursement for the services from the non-educational public agency that failed to provide or pay for these services and that agency shall reimburse the SAU in accordance with the terms of the interagency agreement.
2.Special Education Finances: Public School Tuition ComputationsA.General PrinciplesSAUs may, in accordance with this rule, provide special education services to its children by tuitioning them to another SAU. The receiving SAU shall charge a special education tuition rate for those services, which rate shall be based upon the allowable costs of special education and related services and shall not exceed the actual per pupil costs for these services.
B.Allowable CostsThe allowable costs for computation of special education tuition rates shall be the same as those used in computation of tuition rates for children in regular education: all special education costs except for costs of community services, capital outlay, debt retirement, tuition and transportation.
C.Computation of Tuition RatesThe special educationtuition rate for each SAU receiving tuitioned children with disabilities shall be determined by dividing the sum of the allowable expenditures by the average daily enrollment of children. The allowable expenditures used in computing tuition of an on-going public school special education service shall be based on the prior year expenditures, and the average daily enrollment of children shall be based on the actual number of children receiving special education services enrolled in the SAU for the prior school year.
D.Tuition Rates for New ProgramsIn the case of a new public special education program that receives tuitioned children, the tuition shall be computed by dividing the estimated allowable expenditures by the estimated average daily enrollment of children receiving special education services.
E.Regular Tuition Costs and Allowable CostsIf the SAU pays a regular tuition, as calculated under 20-A MRSA Chapter 219, plus an additional amount for allowable special education services for a child, only the additional amount for allowable special education services shall be considered a special education expenditure.
3.Special Education Finance: Private School Tuition Computations, Approval ProceduresA.General PrinciplesSpecial purpose private schools and general purpose private schools may, in accordance with this rule, provide special education services to children with disabilities and receive tuition payments for such services from SAUs or the Department. In order to receive public funds, a private school shall comply with 20-A MRSA Chapter 117, sub-chapter 2.
B.Annual Year-End ReportsEach special purpose private school shall file an EF-S-10 Year-End Report with the Department in the format required by the Commissioner. All requested information pertaining to actual revenues, expenditures, and enrollments and, where applicable, estimates shall be provided within the specified time limits.
C.Tuition Computation: Special Purpose Private SchoolsThe daily tuition rate at a special purpose private school shall be the sum of allowable expenditures divided by the number of student days. For purposes of this computation:
(1)Allowable expenditures, calculated for the fiscal year (July 1 to June 30) immediately before the fiscal year for which the tuition rate is computed, include only the following:(a)Compensation of employees for the time spent on, and specifically identified as related to, the development and/or implementation of individualized educational programs;(b)Costs of materials acquired, consumed, or expended specifically for the development and/or implementation of individualized educational programs;(c)Equipment and other approved capital expenditures necessary for the development and/or implementation of individualized educational programs;(d)Travel expenses incurred specifically for the development and/or implementation of individualized educational programs; and(e)Indirect costs necessary for the development and/or implementation of individualized educational programs;(2)The number of student days, calculated for the fiscal year immediately before the fiscal year for which the tuition rate is computed, is the sum of the days on which instruction was provided in accordance with the school's calendar;(3)The allowable expenditures calculated in accordance with paragraph (1) shall be divided by the number of student days calculated in accordance with paragraph (2);(3-A)Each SAU shall pay the daily tuition rate calculated above for the total number of student days, regardless of whether the student is in attendance each day, with the following exception: the IEP Team determines whether a student attends during ESY/full-year programming; if the IEP Team decides a student doesn't need ESY/full-year programming, the SAU is not required to pay the daily tuition rate for any day that falls outside the student's program year (e.g. during the summer months).NOTE: The calculation of the daily tuition rate does not change based on whether a student attends during the typical school year only or beyond the typical school year through ESY or full-year programming. The only change is to the number of days for which the SAU is required to pay tuition.
(4)For each year, the tuition rate for each special purpose private school shall be capped at its rate for the previous fiscal year plus the median change in the sum of allowable expenditures of all State of Maine approved special purpose private schools for the 2 fiscal years immediately before the year for which the tuition rate is computed; this is known as the adjustment factor.(a)In a year in which the median change is negative, the special purpose private schools with rates more than one standard deviations lower than the mean will not be subject to a further negative adjustment;(b)In a year in which the median change is positive, the special purpose private schools with rates more than one standard deviation higher than the mean shall be capped at the rate for the previous fiscal year plus one half of the adjustment factor;(c)The adjustment factor shall be no more than 6%.(d)Nothing in subparagraph (4) shall limit any increase in the tuition rate resulting from the change in calculating the number of student days in subparagraph (2) from the actual days of student attendance to the days on which instruction was provided in accordance with the school's calendar.(5)Operating fund balances. General operating fund balances at the end of a special purpose private school's fiscal year must be carried forward to meet the school's needs in the next year. Net revenues in excess of 103% of the fiscal year's net expenses must be used to reduce the net expenditures in the following year.(6)Chargeable rate. The maximum rate of tuition that may be charged by a special purpose private school is the rate computed under this subsection unless the school presents sufficient evidence to the Commissioner that a hardship will exist if a higher rate is not approved.D.Exempted Private AgenciesThis section shall not apply to, and the Commissioner shall have no authority over, tuition rates charged for special education programs by private agencies where the tuition is not paid, reimbursed or otherwise funded in whole or in part by this State.
E.General Purpose Private Schools with Exclusive Contracts or A Child Enrollment With Greater Than 60% Public Tuition Children.A general purpose private school that has a contract with a SAU for the provision of elementary and/or secondary education or enrollment of greater than 60% publicly tuitioned children shall establish a tuition rate for special education services based on actual per child costs. The special educationtuition rate shall be determined by dividing the sum of the allowable costs (based on the prior year expenditures) by the average daily enrollment of children. The allowable expenditures used in computing tuition of an on-going special education service in a general purpose private school shall be based on the prior year expenditures and the average daily enrollment of children shall be based on the actual number of children receiving special education services enrolled in the school for the prior school year.
F.General Purpose Private Schools with Tuition ChildrenA general purpose private school that does not have a contract with a school administrative unit for the provision of elementary and/or secondary education shall charge a tuition rate that does not exceed the State elementary or secondary per child tuition rate as computed under 20-A MRSA §§5804 and 5806.